Citation Nr: 1506556
Decision Date: 02/12/15 Archive Date: 02/18/15
DOCKET NO. 12-29 468 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUES
1. Entitlement to an initial rating in excess of 20 percent for a low back condition,
2. Entitlement to an initial compensable rating for right foot hallux valgus.
3. Entitlement to an initial compensable rating for left foot hallux valgus.
4. Entitlement to an initial rating in excess of 50 percent from September 29, 2011 and 70 percent from January 16, 2013, forward, for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
N. Sonia, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1969 to August 1971.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.
The Board notes that in a March 2013 rating decision, the RO assigned a 70 percent rating for the Veteran's PTSD, effective January 16, 2013. Therefore, the increased rating constitutes a partial grant of benefits, such that the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993).
Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system and the Veterans Benefits Management System. The documents within these systems include documents relating to the immediate appeal. The documents are considered to be part of the claims file, and as such have been considered as part of the present appeal.
FINDINGS OF FACT
1. The Veteran's forward flexion of the thoracolumbar spine was not less than 30 degrees, and there was no evidence of ankylosis throughout the appeal period. Incapacitating episodes of more than four weeks in duration were not shown, and the evidence did not show any objective neurologic abnormalities associated with the lumbosacral strain.
2. The Veteran's right hallux valgus has not required surgical operation with resection of the metatarsal head and has not been shown to be of such severity as to equate to amputation of the great toe.
3. The Veteran's left hallux valgus has also not required surgical operation with resection of the metatarsal head and has not been shown to be of such severity as to equate to amputation of the great toe.
4. From September 29, 2011, forward, the Veteran's PTSD has resulted in occupation and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms such as impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, panic attacks, disturbances of motivation and mood, depressed mood, anxiety, suspiciousness, mild memory loss, intermittent panic attacks, and chronic sleep impairment. Total occupational and social impairment due to PTSD has not been shown; the Veteran has demonstrated appropriate behavior and appearance as well as normal speech and communication.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 20 percent for the Veteran's low back condition have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5242 (2014).
2. The criteria for entitlement to an compensable initial rating for right foot hallux valgus have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5280 (2014).
3. The criteria for entitlement to an compensable initial rating for left foot hallux valgus have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5280 (2014).
4. From September 29, 2011, the criteria for entitlement to an initial rating of 70 percent, but no higher, for the Veteran's PTSD have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.3, 4.7, 4.10, 4.130 Diagnostic Code 9440 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Evaluation of a service-connected disability requires a review of the Veteran's entire medical history regarding that disability. 38 C.F.R. §§ 4.1, 4.2 (2014). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2014). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14.
When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. Ap. 119 (1999).
In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
Low Back Condition
The Veteran's service connected low back condition has been assigned a 20 percent rating under Diagnostic Code 5003-5242. Hyphenated Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2014).
Scheduler ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases and Injuries of the Spine (General Formula) or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates) stiffness, or aching in the area affected by residuals of the injury or disease. 38 C.F.R. § 4.71a.
The General Formula provides the following:
* A 20 percent rating is assigned for
o Forward flexion greater than 30 degrees but not greater than 60 degrees;
o Combined range of motion not greater than 120 degrees;
o Muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
* A 40 percent rating is assigned for
o Forward flexion 30 degrees or less;
o Favorable ankylosis of the entire thoracolumbar spine.
* A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.
* A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.
For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243, Note (2).
The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). See also 38 C.F.R. § 4.71a, Plate V.
The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides the following:
* A 20 percent rating is assigned for intervertebral disc syndrome with
o Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.
* A 40 percent rating is assigned for intervertebral disc syndrome with
o Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.
* A 60 percent rating is assigned for intervertebral disc syndrome with
o Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.
For purposes of evaluations under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1).
A review of the evidence shows that a rating in excess of 20 percent is not warranted for the Veteran's low back condition under either the General Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.
The Veteran underwent a VA spine examination in September 2011. He demonstrated forward flexion of 60 degrees, with pain beginning at 20 degrees. There was no additional limitation of movement upon repetitive use testing, to include as due to pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Muscle tone was normal, and there was no atrophy present in the limbs. The examiner indicated there was no muscle spasm or guarding of movement, nor was there ankylosis of the thoracolumbar spine. The examiner also noted that Veteran denied being hospitalized for the spinal condition and that the condition did not result in any incapacitation in the previous twelve months.
Another VA spine examination was provided in February 2013. The Veteran demonstrated forward flexion to 50 degrees. There was no additional limitation of motion upon repetitive use of the spine, but the examiner noted functional loss manifested by less moment than normal, pain, instability of station, disturbance of location, and interference with sitting, standing, and/or weight bearing. Muscle strength testing was normal, and there was no muscle atrophy present. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The Veteran did not indicate the use of any assistive devices. The examiner did not find ankylosis of the thoracolumbar spine.
The February 2013 examiner also indicated that the Veteran had intervertebral disc syndrome of the thoracolumbar spine. The examiner identified incapacitating episodes over the previous twelve months of at least two weeks but less than four weeks in duration.
VA treatment records reflect the Veteran's report of back pain. For example, in April 2013, the physician noted slightly decreased range of motion of the lumbar spine.
Therefore, the evidence does not show the Veteran's service-connected low back disability has resulted in forward flexion of the thoracolumbar spine of 30 degrees or less or ankylosis of the thoracolumbar spine, such as to warrant the next highest rating under the General Formula. Similarly, the evidence does not show incapacitating episodes of more than four weeks in duration to warrant a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Consequently, a rating in excess of 20 percent is not warranted.
The Board has considered whether the Veteran is entitled to a higher rating due to functional impairment under the provisions of 38 C.F.R. §§ 4.40 and 4.45.
At the September 2011 VA examination, the Veteran stated that he had difficulty walking and experienced falls due to his spine condition. He also reported stiffness, fatigue, spasms, decreased motion and paresthesia of the spine as well as weakness of the spine, leg, and foot. The Veteran also testified at a formal hearing at the RO that he had difficulty lifting because of his back condition. He stated that he had difficulty rising to a standing position, to include getting out of bed in the morning and exiting his vehicle. The evidence of record also includes several lay statements from family members. Although the statements primarily discuss the Veteran's PTSD symptoms, they also reflect the Veteran complaints of back pain. In particular, a statement from the Veteran's daughter-in-law indicates the Veteran had difficulty playing with or holding his grandchild because of physical ailments.
Even considering the Veteran's report of back pain, however, the Board finds that a higher rating is not warranted based on functional loss. Repetitive motion testing did not result in any additional limitation of motion during any VA back examinations. There was also no finding of muscle atrophy or other evidence of disuse. It is noted that the Veteran's September 2011 VA examination report indicated that, while the Veteran could flex his thoracolumbar spine to 60 degrees, pain began at 20 degrees. While pain began at that point, it is clear from that record as well as all of the other medical evidence of record that the Veteran's functional impairment was not limited to 20 degrees of forward flexion. Despite this complaint of pain, the Veteran could functionally flex to 60 degrees at that time and to 50 degrees as shown on the February 2013 VA examination. Again, in February 2013, there was no additional functional impairment shown that limited the Veteran's flexion to less than he was able to flex. The Board therefore finds that the evidence does not show functional impairment beyond the levels contemplated in the currently assigned ratings.
Next, the Board must evaluate any objective abnormalities associated with the thoracolumbar spine condition, as required under Note (1) of the General Formula. In this regard, the Veteran denied numbness in the spine at the September 2011 VA spine examination. There were no bowel problems identified in relation to the spinal condition. At the February 2013 VA spine examination, the Veteran's sensory examination revealed normal results, and there were no signs or symptoms of radiculopathy. Indeed, the examiner concluded the Veteran had no neurologic abnormalities related to the thoracolumbar spine, such as bowel or bladder problems or pathologic reflexes. Moreover, VA treatment records from 2011 and 2013 reflect normal sensory and reflex examinations.
The Board notes, however, that the Veteran has reported and been treated for tremors in the right upper and lower extremities. However, VA treatment records and examiners have not attributed these symptoms to a neurologic impairment associated with the thoracolumbar spine. To the contrary, the only evidence of record identifying an etiology for the tremors is part of private records from a neurology clinic which identifies a possible relationship between the tremors and the Veteran's PTSD and related anxiety. However, the Veteran's claim for tremors as secondary to his PTSD was denied by the RO in July 2013. As such, the Board finds there are no objective neurologic abnormalities associated with the Veteran's low back condition to be evaluated separately at this time.
After careful review of the evidence, no other diagnostic codes would be appropriate to evaluate the Veteran's low back condition. 38 C.F.R. § 4.1, 4.2; Schafrath, 1 Vet. App. at 595. In short, the Board has considered the Veteran's reported symptoms and any associated neurologic abnormalities.
Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 20 percent for a service-connected low back condition, and there is no basis for a staged rating of the Veteran's disability. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1- 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2014).
Hallux Valgus
The Veteran's hallux valgus has been assigned a non compensable rating for both the right and left feet under Diagnostic Code 5280.
Under Diagnostic Code 5280, unilateral hallux valgus will be rated as 10 percent disabling when it requires surgical operation with resection of the metatarsal head or if it is severe, or the equivalent to amputation of the great toe. See 38 C.F.R. § 4.71a.
At the September 2011 VA examination, x-rays revealed hallux valgus in both feet. The condition was described as mild. The Veteran reported sharp, aching pain relieved by rest and medication. He also reported stiffness, swelling, fatigue, and weakness when standing or walking. The examination report did not indicate surgical operation with resection of the metatarsal head was required.
At the January 2013 RO hearing, the Veteran reported pain and tenderness of his feet. He also reported swelling, but indicated symptomology in his ankles, rather than his feet.
The Veteran was afforded another VA examination in February 2013. The examiner noted the Veteran had not had surgery for hallux valgus, and, again, the condition was described as mild. The examiner noted the Veteran did not use assistive devices and that the functional impairment caused by the condition was not of such severity that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran's bilateral hallux valgus was not found to impair his ability to work.
Finally, the evidence contains statements from the Veteran's family members reporting his experience with physical ailments, including pain in his feet.
Based on the foregoing, the Board finds that a compensable rating for the Veteran's right and left hallux valgus is not warranted. As the Veteran has not undergone surgical resection of the metatarsal head of his left foot, a 10 percent rating is not warranted on that basis. In addition, the evidence of record does not suggest that the Veteran suffered from severe bilateral foot hallux valgus equivalent to amputation of either great toe. Indeed, while the Veteran has complained of pain in his feet, Veteran has not required corrective or assistive devices to ambulate, and the February 2013 examiner specifically indicated that his impairment did not cause functional loss of such severity that no effective function remained other than that which would be equally well served by an amputation with prosthesis.
The Board has also considered other potentially applicable diagnostic codes. 38 C.F.R. § 4.1, 4.2; Schafrath, 1 Vet. App. at 595. However, the February 2013 VA foot examination shows the Veteran did not have flatfoot, weak foot, claw foot, metatarsalgia, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones. Therefore, Diagnostic Codes 5276 through 5283 (excluding the code for hallux valgus) are not applicable in this case. Regarding Diagnostic Code 5284, which evaluates other foot injuries, the evidence does not show that the Veteran's service-connected bilateral foot hallux valgus results in moderate disability required for a compensable 10 percent disability rating. Indeed, the February 2013 examiner specifically indicated that, aside from the bilateral hallux valgus, the Veteran did not suffer from any other foot injuries.
The criteria for entitlement to an initial compensable rating for service-connected right and left foot hallux valgus have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1- 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5280 (2014).
PTSD
The Veteran's PTSD has been rated as 50 percent disabling from September 29, 2011 and 70 percent disabling from January 16, 2013, forward, under Diagnostic Code 9440. See 38 C.F.R. § 4.130.
The General Rating Formula for Mental Disorders provides the following:
* A 50 percent disability evaluation is assigned where the evidence demonstrates occupational and social impairment with reduced reliability and productivity due to such symptoms as:
o flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment in short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.
* A 70 percent disability evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as:
o suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships.
* A 100 percent disability evaluation is assigned where the evidence shows total occupational and social impairment, due to such symptoms as:
o gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.
When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. The rating agency shall also consider the extent of social impairment, but not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b).
Moreover, the list of symptoms under the rating criteria is meant to be examples of the symptoms that would warrant the evaluation, but they are not meant to be exhaustive. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).
In assessing the evidence of record, it is also important to note that the Global Assessment of Functioning (GAF) Scale reflects the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the DSM-IV). A score of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See Carpenter v. Brown, 8 Vet. App. 240, 242-44 (1995). A score of 51 to 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. A score of 61 to 70 is defined as some mild symptomatology (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Id.
The Board finds that a 70 percent rating, but no higher, is warranted from September 29, 2011, forward, essentially eliminating the staged rating in this case. In short, the evidence shows that the Veteran's PTSD has resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood.
VA treatment records from August 2011 contain a psychiatric evaluation in which the Veteran indicated a feeling of detachment from others and a decreased activity in daily activities. He discussed his depressed mood, feelings of hopelessness, sleep impairment, difficulty concentrating, and hypervigilance. However, he denied any suicidal or homicidal ideation. The Veteran was assigned a GAF score of 55.
The Veteran's family members submitted several statements in September 2011 discussing the Veteran's PTSD symptoms. The letters focused on the Veteran's "episodes" or seizures. However, as noted, the Veteran's claim for tremors as secondary to PTSD has been denied, and his initial claim for Parkinson's disease was also denied by the RO in February 2012. Nonetheless, the letters are pertinent because they discuss the Veteran's depressed mood, short temper, and difficulty sleeping.
The Veteran was afforded a VA examination in November 2011. The examiner concluded the Veteran suffered from PTSD that resulted in social and occupational impairment with reduced reliability and productivity.
The examiner indicated that after separation from service, the Veteran reported a positive relationship with his supervisor and co-workers. He also indicated he had good relationships with family members but that he still tended to avoid social events. He reported irritability and difficulty getting along with other people.
The examiner identified several PTSD symptoms including depressed mood; anxiety; suspiciousness; chronic sleep impairment; flattened affect, disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work-like setting. The Veteran also reported nightmares, and the examiner noted impairment in attention and/or focus.
However, the Veteran was not found to have a history of violent behavior or suicide attempts. He also did not exhibit grossly inappropriate behavior, and his orientation was within normal limits. Communication and speech were within normal limits. The Veteran's appearance and hygiene were appropriate. Delusions and panic attacks were absent.
Although the November 2011 report contains several symptoms indicative of a 50 percent rating, rather than a 70 percent rating, the Veteran was also assigned a GAF score of 46 at that time. The examiner described the Veteran's condition as "severe," resulting in limitations in daily function and "no social life." The examiner also identified impairment of attention and/or focus.
At the Formal RO hearing held on January 16, 2013, the Veteran indicated that while it was not noted in his VA examination, he did suffer from panic attacks. He also indicated that he was having violent episodes, as asserted by his wife.
The Veteran underwent another PTSD examination in February 2013. The examiner once again concluded that the Veteran's PTSD resulted in social and occupational impairment with reduced reliability and productivity. However, a GAF score of 43 was assigned. In addition to the symptoms identified in the November 2011 examination, the examiner identified additional symptoms, including memory problems, such as an inability to remember important aspects; startled response; difficulty trusting others; and an inability to establish and maintain effective relationships. In terms of social functioning, the examiner stated that the Veteran's depression would also make it difficult to maintain relationships. The examiner explained the effect of the symptoms on the Veteran's occupation as causing him to miss work and work less efficiently due to difficulty concentration. The examiner also indicated that the Veteran's sleeping problems would make it difficult to get to work on time, pay attention, and stay organized.
However, the examiner indicated the Veteran did not have more severe memory loss, such as loss for names of close relatives, own occupation or own name. The Veteran also did not have gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, an intermittent inability to perform activities of daily living, or spacial disorientation.
Affording the Veteran the benefit of the doubt, the evidence shows that his PTSD has manifested in in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood; such a finding provides for a 70 percent rating effective September 29, 2011 (rather than January 16, 2013). Although the November 2011 and February 2013 examiners described the Veteran's PTSD as resulting only in occupational and social impairment with reduced reliability and productivity (indicative of a 50 percent rating), the Veteran had low GAF scores of 46 and 43 at the VA examinations. The evidence also shows an inability to maintain work and social relationships. The examiners also identified decreased occupational productivity.
However, the evidence does not show total occupational and social impairment as a result of PTSD symptoms to warrant the maximum 100 percent rating. The VA examiners indicate the Veteran's symptoms would cause decreased productivity; there is no medical opinion of record that the Veteran's PTSD results in total occupational and social impairment. In this regard, the Board notes that the company president, "L.A. Shelton" provided information about the Veteran's work history at a uniform retail store. The employer indicated the Veteran could no longer perform his duties due to his PTSD and that he last worked in March 2013. However, there is no indication that the company president possesses the medical training necessary to identify the level of severity of the Veteran's mental disorder. See Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran himself has also asserted that he meets the criteria for a 100 percent rating. He is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, he too lacks the medical knowledge and qualifications to address such a complex medical issue as diagnosing the level of occupational and social impairment resulting from a mental disorder, to include analysis of GAF scores and other diagnostic testing.
Also, the VA examination reports and treatment records do not reflect symptoms associated with a 100 percent rating, such as gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, an intermittent inability to perform activities of daily living, disorientation to time and place, or memory loss for names of close relatives, own occupation or own name. To the contrary, the Veteran repeatedly denied suicidal ideation, and his communication and speech were within normal limits. Also, his appearance has been described as appropriate.
Accordingly, the Board finds that the a 70 percent rating, but no higher, is warranted for the Veteran's PTSD from September 29, 2011, forward; there is no basis for a staged rating of the Veteran's disability. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.159, 4.1-4.16, 4.130, Diagnostic Code 9440; Gilbert, 1 Vet. App. at 49.
Additional Considerations for Increased Rating Claims
The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). In a July 2013 rating decision, the RO granted TDIU effective March 30, 2013, the date the Veteran indicated he last worked. Therefore, while there remains the issue of entitlement to TDIU under Rice prior to March 30, 2013, the evidence shows that the Veteran was able to work until that time.
Next, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected low back condition, right foot hallux valgus, left foot hallux valgus, and PTSD are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe his disability levels and relevant symptomatology. Specifically, the criteria contemplate the Veteran's reports of pain and limited motion of his low back, which is further considered by application of 38 C.F.R. § 4.40, § 4.45, and § 4.59. The rating criteria also contemplate the Veteran's diagnosis of hallux valgus and associated foot pain. With regard to his PTSD, the Veteran's symptoms were listed in Diagnostic Code 9440. Although the Veteran's reported feelings of guilt are not specifically listed in the rating criteria, the levels of occupational and social impairment are explicitly part of the schedular rating criteria under Diagnostic Code 9440, which include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App. at 442; see also 38 C.F.R. § 4.21. The Board has also considered the Veteran's GAF scores, which were consistently indicative of moderate to severe symptomatology. Indeed, GAF scores are incorporated through the DSM-IV as part of the schedular rating criteria as reflective of the degree of severity of psychiatric symptoms or overall functional impairment caused by PTSD. In short, the rating criteria reasonably describe the Veteran's disability levels and symptomatology.
The Veteran has not expressly raised the matter of entitlement to an extraschedular rating. His contentions have been limited to those discussed above, i.e., that his disabilities are more severe than is reflected by the assigned ratings. As was explained in the merits decision above in denying higher ratings, the criteria for higher schedular ratings were considered, but the ratings assigned were upheld because the rating criteria are adequate. Accordingly, the Board finds that the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service connected disabilities, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014).
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014); Dingess/Harman v. Nicholson, 19 Vet. App. 473 (2006). Here, the duty to notify was satisfied by August 2011 and November 2011 letters to the Veteran.
Moreover, as it pertains to the claims for higher initial ratings, where, as here, service connection has been granted and the initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).
Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The evidence of record includes service treatment records, private treatment records, VA treatment records, statements in support of the claim by the Veteran and his representative, other lay statements, and several VA examinations.
When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Veteran testified at the RO hearing in January 2013 that the September 2011 VA back examination was hurried and he was not physically examined. However, the Veteran also testified that "he put me in several different positions" to take x-rays. Therefore, the Veteran's statement that he was never physically touched by the examiner is inconsistent with his own statement regarding taking x-rays. As far as the pace of the examination, there is no indication that the examination was inadequate or that the medical professional who conducted the examination failed to obtain the information probative of his findings. Indeed, the examination report reflects that the examiner reviewed the Veteran's relevant medical history, recorded pertinent examination findings, and provided a sufficient analysis to support the conclusions rendered. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Further, the subsequent VA examinations obtained and the VA and private treatment records associated with the claims file are consistent with the September 2011 VA examiner's findings regarding the Veteran's back condition. The Veteran has not challenged the remaining examinations' adequacy or thoroughness, or the competency of the examiners. Accordingly, VA's duty to provide a VA examination is satisfied.
Based on the foregoing, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
Entitlement to an initial rating in excess of 20 percent for a low back condition is denied.
Entitlement to an initial compensable rating for right foot hallux valgus is denied.
Entitlement to an initial compensable rating for left foot hallux valgus is denied.
Entitlement to an initial rating of 70 percent from September 29, 2011, forward, for PTSD is granted, subject to the regulations governing the award of monetary benefits.
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R. FEINBERG
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs